Jaidev Beniwal vs State of Haryana and Another

Mahesh Grover, J.—This order will dispose of abovesaid Crl. Misc. No. 15664-M of 2003 and Crl. Misc. No. 48091-M of 2003.

The Petitioner has invoked the jurisdiction of this Court u/s 482 of the Code of Criminal Procedure and has prayed for quashing of the criminal complaint preferred by Respondent No. 2 under Sections 494, 109, 114 IPC as also the summoning order dated 12.7.2000 and order dated 11.3.2003, vide which the revision against the aforesaid order has been dismissed.

The complainant, who is Respondent No. 2, filed a complaint against the Petitioners as also a number of other persons including Jaswinder Beniwal who is the son of the present Petitioner.

The complainant alleged that she had got married to Jaswinder Beniwal on 25.10.1995 according to the Hindu rites and ceremonies at House No. 1100/2, Sector 39-B, Chandigarh in the presence of close relatives. The marriage was solemnised at Chandigarh where the couple resided after marriage. The complainant conceived and she received a message from the Petitioner that she should come and live with them at Hisar, pursuant to which she went to Hisar on 4.12.1996. She was then taken to Jaipur after a period of two days where she developed some complications and was taken to hospital at Jaipur for check-up. She realised subsequently that the fetus had been aborted without her knowledge and consent. The doctor disclosed that it was done with the consent of her husband.

Her husband Jaswinder Beniwal used to misbehave with her under the influence of liquor. In March, 1997, her husband and the Petitioner threatened her that they will remarry Jaswinder Beniwal which forced the complainant to file a suit for permanent injunction in the court of Senior Sub-Judge, Chandigarh in which notice was issued on 5.4.1997 for 7.4.1997.

Her husband, thereafter, assured her that he will not contract a second marriage. He went to Arya Samaj Mandir, Sector 22, Chandigarh on 18.4.1997 and again solemnised the marriage with the complainant. A certificate of marriage bearing Sr. No. 336 issued by the Arya Samaj Mandir, Sector 22, Chandigarh was issued to them.

Feeling re-assured, the complainant withdrew the civil suit on 30.4.1997. Thereafter the couple went to Gurgaon where they resided as husband and wife in Jalwayu Vihar, Gurgaon. She was then deserted by her husband on 25.6.1997 who came back and started residing at Hisar.

The complainant along with her sister, followed him to Hisar. On the intervening night of 15th and 16th of June, 1997, when the complainant was present at her parental house, Jaswinder Beniwal took her to his house situated at Farm Colony, Barwala Road, Hisar. She was beaten up and was taken to the house of the Petitioner. Other relatives were also present there. They cursed her and abused her for not bringing an Esteem car.

The complainant then lodged FIR No. 348 dated 16.6.1997 with Police Station, Civil Lines, Hisar u/s 498-A/323/148/149 IPC. All the accused persons named in the FIR were arrested and released on bail.

Thereafter it was alleged that Jaswinder Beniwal forcibly took away the record of Arya Samaj Mandir, which had issued the marriage certificate.

The sole allegation against the Petitioner is reflected in paras 15 and 17 of the complaint wherein it has been alleged that Jaswinder Beniwal contracted a second marriage on 1.3.1998 and the Petitioner who was aware of the earlier subsisting marriage with the complainant, was present and therefore, was guilty of having abetted the offence committed by Jaswinder Beniwal u/s 494 of the IPC.

Pursuant to the aforesaid complaint, the complainant got recorded preliminary evidence in the shape of one Jagdish Acharya, Purohit of Arya Samaj Mandir, Gopal Kirshan who was an employee of Card Palace, Karnal, Kuldip Kumar, Assistant who brought the record of the Rest House and the complainant herself and her mother Roshi Devi.

The trial Court, after appraisal of preliminary evidence adduced by the complainant, summoned the Petitioner along with other accused to stand trial for having abetted the commission of an offence u/s 494 IPC on 12.7.2000. The Petitioner filed a revision petition against the summoning order which was dismissed on 11.3.2003.

The Petitioner has invoked the inherent powers of this Court and the only contention raised by the learned Counsel for the Petitioner is that the present proceedings are clearly an abuse of process of law and the powers of this Court u/s 482 Code of Criminal Procedure deserve to be exercised in the given set of facts and circumstances of the case to secure the ends of justice.

Notice of this petition was issued to the Respondents on 10.4.2003. They, however, despite several opportunities, did not choose to file any reply to controvert the allegations as made in the present petition

It was contended by the learned Counsel appearing for the Petitioner that Respondent No. 2 is a habitual and a chronic litigant. She is also involved in several criminal cases, details of which were given in paragraph 10 of the petition which enlisted the involvement of the complainant in as many as 10 cases, which also include the offence u/s 307.

In the backdrop of the facts, it was contended that the Petitioner had, in fact, disowned his son because of his association with a woman of such dubious antecedents. The affidavit duly attested by the Executive Magistrate disowning the son of the Petitioner and disinheriting him from the property was stated to have been furnished to that effect which is Annexure P-12 on record. The affidavit is dated 24.6.1997 which is prior to the filing of the present complaint and almost immediately after the marriage was performed on 18.4.1997. A publication to that effect was also got done in the newspapers.

Learned Counsel for the Petitioner contended that even if the allegations of the complaint are taken to be correct, yet they would not constitute any offence as the only allegation against him is that he was present during the solemnisation of the second marriage and even if knowledge is imputed to him, even then no offence is made out.

On the other hand, learned Counsel for the complainant contended that once a revision petition has been preferred and the same having been dismissed, the proceedings u/s 482 of the Code of Criminal Procedure could not be initiated as the second revision is clearly barred.

I have heard learned Counsel for the parties.

There is absolutely no dispute about the proposition of law that pursuant to the provisions u/s 482 of the Cr.P.C., the inherent powers vested with this Court cannot be exercised to enable a second revision to be filed as the same is expressly barred by the Statute. However, consistent views of the Courts are that there is no bar in the exercise of the inherent powers to stall an abuse of process of law or to secure the ends of justice.

Hon''ble Supreme Court in the case of has held as under:

In following categories of cases, the High Court may in exercise of powers under Article 226 or u/s 482 of Code of Criminal Procedure may interfere in proceedings relating to cognizable offences to prevent abuse of the process of any Court or otherwise to secure the ends of justice. However, power should be exercised sparingly and that too in the rarest of rare cases:

(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers u/s 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated u/s 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

Where allegations in the complaint did constitute a cognizable offence justifying registration of a case and investigation thereon and did not fall in any of the categories of cases enumerated above, calling for exercise of extraordinary powers or inherent powers, quashing of FIR was not justified.

Similar is the view in the case of the relevant portion of which is as under:

Similarly, in the case of the Apex Court expunged the law regarding the exercise of the inherent jurisdiction u/s 482 of the Code by the High Court in such like matter as under:

The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and whether in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceedings even though may be at a preliminary stage.

After a review of the entire case law available on the subject and examining the various provisions of the Code and the Constitution of India, in a well- known judgment rendered in State of Haryana and others Vs. Ch. Bhajan Lal and others, illustrated certain categories of cases wherein a Court in exercise of its powers u/s 482 of the Code or in exercise of their extra-ordinary powers under Article 226 of the Constitution of India can quash a First Information Report or a complaint. Categories Nos. 1 and 3 read as under:

Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

Whether (Where ?) the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

Thus, where the allegations made in a complaint, even if they are taken at their face value and accepted in entirety, do not constitute prima facie an offence or make out a case against the accused which the Court is well within its powers to quash the complaint.

Reverting back to the facts of the case it is to be seen that the only allegation against the Petitioner is that he was present at the time of solemnization of the subsequent marriage of their (his ?) son which ipso facto cannot be termed to be an abetment to attract the provisions of Section 109 of the IPC.

This Court in the case of has observed as follows:

In so far as the other accused excluding Chander Parkash, his second wife Gita and his parents, are concerned, they cannot be said to have abetted the commission of the offence u/s 494, IPC (by Chander Parkash accused), even if it may be assumed for the sake of argument that they were aware of his first marriage with Veena. The mere fact that they participated in the marriage or they accepted some Shagun in the form of Milni etc. during the ceremonies of the marriage, cannot lead to the conclusion that they had abetted the commission of the offence by Chander Parkash, accused. In the circumstances of the impugned order, whereby the accused, other than Chander Parkash, Geeta, Ram Baksh and Shielo, have been charged u/s 494 read with Section 109, IPC is held to be improper and unsustainable. However, nothing could be seriously urged by the learned Counsel for the Petitioners regarding the impugned order insofar as the framing of the Charge-Sheet against Chander Parkash and Geeta accused u/s 494, IPC and against Ram Baksh and Shielo u/s 494 IPC read with Section 109 IPC is concerned. Hence this part of the order is maintained.

The said view was subsequently followed in judgments of Partap Singh and Ors. v. Surjit reported as 1995(5) AIJ 156 and also Ram Singh v. State of Punjab reported as 1996(2) RCR 784 (P&H).

For the aforesaid reason that even if the allegations in the complaint are taken to be correct, no offence can be said to have been committed by the Petitioner. Therefore, this Court, in order to secure the ends of justice, deems it appropriate to exercise its inherent powers u/s 482 of the Code of Criminal Procedure to quash the complaint and the consequent summoning order.

In Crl. Misc. No. 48091-M of 2003, the Petitioners are the parents of the girl with whom the second marriage was allegedly contracted. The allegations against them also, even if taken to be correct, do not constitute any offence.

Consequently, the complaint preferred by Respondent No. 2 under Sections 494, 109, 114 IPC as also the summoning order dated 12.7.2000 and order dated 11.3.2003, vide which the revision against the aforesaid order has been dismissed, are directed to be quashed qua the Petitioners in the aforesaid Criminal Misc. petitions which are being disposed of herein.